Legal Cauldron issue 1 of 2009

THE EFFECTS OF A FIXED TERM EMPLOYMENT

Legal Cauldron

In this issue:

The Effects Of A Fixed Term Employment.

1

Legal Systems: Nigeria And Malaysia In Comparative Perspectives

4

Legal Knowledge Management (A Knowledge Manager’s Insight)

8

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There are many who have asked me what are the effects of a fixed term contract of employ-ment? In fact many employers are of the opinion that with a fixed term

contract of employment, the employer has the option to continue or discontinue the contract of employment upon the expiry of that fixed term. In fact, there have been instances where employers resort to a fixed term contract because the employer feels that by having a fixed term say even a one-year contract, then, even if the employment does not work out, all the employer has to do is to not renew the contract of employment. Unfortunately the law in Malaysia is not that straightforward. The Industrial Law in Malaysia has recognised that there have been instances where the employers may resort to a fixed term contract to avoid either continuing to employ the employee or to limit the possible compensation in the event the employee is deemed to be terminated without just cause and excuse. What I hope to achieve in this article is to give some insight on the law pertaining to a fixed term contract. In most cases where the employee was terminated and where he/she claims that the termination was without just cause and excuse, an employee with a fixed term contract will argue that his contract

was actually a normal continuous employment contract couched as a fixed term contract and as such the law pertaining to a continuous employment should prevail. Conversely, an employer who has issued a fixed term contract would argue that the employment contract was for a limited period only and therefore even if the termination is unlawful, the compensation payable should be limited to the balance period remaining under the fixed term contract.

What the Indus-trial Court will set out to do is to determine whether the employment contract, although named a fixed term contract, was indeed so. This

would mean that the Industrial Court would go behind the contract to determine the intention of the parties and determine whether the employment contract was indeed a fixed term contract or a continuous employment contract. The first thing that an employee must do is to prove that his/her employer had intended to renew the fixed term contract. In most cases, if this is proven, the court will more likely than not determine that the fixed term contract was indeed a continuous employment contract. In the case of Man Yau Holdings Bhd v Pakirisamy Karunakaran (2003) 2 ILR 776, the court held that the burden is on the Employee to prove that the Employer intended to renew the contract. The parties can resort to the terms of the contract to see whether there exist a term which allows for

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JHJ Bi-annual Newsletter Vol. 1/2009

No. KDN: PP15706/02/2009 (020636)

Messrs Jayadeep Hari & Jamil (Advocates & Solicitors)

Page 2 Legal Cauldron

the contract to be renewed. Therefore, the terms in the con-tract are very important.

The Employee can also adduce evidence of any arrangement or promise that may have been made by the Employer to suggest that the Employee’s contract will be renewed beyond the period stated in the fixed term contract. This means that the Employee must show that he had a legitimate expectation that his contract

will be renewed for a further period. To understand this better, allow me to refer to a case and reproduce briefly what was stated in that case. In the case of Asian Supply Base Sdn Bhd v Terry Mogindol (2005) 1ILR 708 the Court held as follows: - i) The Claimant commenced work on 26 October 1998 and

his last day of contract was 25 October 2000. The Claimant’s contract was not renewed beyond 25 Oct 2000. The Claimant claimed that by not renewing his contract, he was terminated without just cause and excuse.

ii) It was also a term of the said contract that ‘at its

completion, a further contract may be negotiated, on a mutually agreed basis.

iii) The correct approach to be applied in the determination of

the issue with regard to a fixed term contract is by determining first whether or not the contract in question was a genuine fixed term contract.

iv) If the Industrial Court made a finding that it was not a

genuine fixed term contract but was instead a normal contract of employment, only then would the Industrial Court be required to ask whether there was a dismissal or not and that if so, whether it was with just cause or excuse. In the instant case, since a finding was reached that the contract concerned was indeed a genuine fixed term contract the question of there being a dismissal or not does not arise. Once it has been established that there is a genuine fixed term contract, the dissolution of the contract upon reaching the expiry date of the fixed term would clearly spell the end of the worker’s tenure with the relevant Company.

v) The expiry of a fixed term contract would not amount to a

termination of the claimant’s services without just cause or excuse. The claimant’s tenure with the relevant company ended upon expiry of the fixed term.

vi) The court further held that the words “a further contract

may be negotiated on a mutually agreed basis” imposes the element of discretion on either party to negotiate. This negotiation is not mandatory. It also means that if there was an agreement for a further contract it must be mutually agreed by both parties.

vii) Another point made by the court was that in the instant

case this is the first fixed term contract and there were no previous renewals of the said contract.

What is important to note from the above case is that the Industrial Court did investigate to determine w h e t h e r t h e r e w e r e a n y circumstances, which could have led the employee to believe that the contract was indeed a normal employment contract and not a fixed

term contract. One of the things considered by the court was whether this was the first fixed term contract i.e. there were no previous renewals of the said contract. This implies that if there were renewals before then, chances are the court would have found that the fixed term contract was indeed a normal employment contract.

The court in the case of Petroleum Nasional Berhad v Michael Norberg [2004] 2 ILR 776 also held that the employee there did not prove that he was given an assurance that his employment contract was to be for a long-term period. The court held that there

was no evidence that the contract there was a permanent contract dressed up in the form of fixed term contract.



Conclusion What employers would need to be reminded of is that not all fixed term contracts would be deemed so by the courts. The courts will in fact look into the circumstances of the employment and then determine whether it was indeed a fixed term contract or a normal contract of employment. Some of the circumstances the court will look into would be: - a. whether there was any assurance or conduct by the

employer to give the employee an indication or assurance that his fixed term contract would be continued long term;

b. whether there was a previous renewal of the fixed term

contract, which would give an indication to the employee that, his contract was in fact a normal long-term contract.

What is important to note how-ever is that this dispute as to whether a contract is a fixed term or a normal long-term con-tract is only relevant when the fixed term contract is not renewed. It is only then that the dispute of whether it is a fixed term contract arises. This is

because the employee would argue that by not renewing the contract of employment, the employer has terminated his employment without just cause and excuse. The employer on the other hand would argue that they are merely follow-ing the terms of the contract, which allows them to not renew. If the court determines it is not a fixed term contract, then the employee will most likely succeed in his claim for unjust termination. The dispute as to whether a contract of employment is fixed or not does not matter when determining whether the termination of an employee was with just cause and excuse, if the termination was done during the validity of the fixed term contract. It matters here when determining quantum. What this means is that during the period of the fixed term contract, if an employee is terminated, the employer must still prove that it was done with just cause and excuse. Just because it is a fixed term contract does not mean an

employer can simply terminate an employee. Furthermore, if it is proven to be a fixed term contract, and the employee was unjustly terminated, then his compensation would be for the remaining period of the contract. If on the other hand, the contract were deemed a normal long-term contract, then the compensation or back wages payable would follow the current law, which applies, to any normal employee. It is hoped that with this brief article, the position with regards to a fixed term employment contract has become a little clearer.

Harikannan Ragavan Partner & Head of Litigation Department

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Some months ago, one of our partners, Mr. Harikannan Ragavan (“Mr. Hari”), flew to Dubai to handle a case for a client. He relished the opportunity of exploring the intricacies of different legal systems. However uncertainty over the potential differences between the Dubai legal system and the Malaysian legal system that he is so familiar with, and their likely impact on the outcome of that case caused him some measure of disquiet. In the scenario just represented, the impact of differences and/or similarities in legal systems on legal outcomes can be quite critical. Mr. Hari’s client won in that case, because both legal systems although procedurally different, did not vary in the general appreciation of substantive law, which in this case was the law, and principles of contract. . This paper compares the legal systems of Nigeria and Malaysia, and highlights noticeable differences and similarities. It should be noted that both countries are former British colonies, with a substantial British influence. To what extent is this reflected in their respective legal system? The comparison is based primarily on the court system, the applicable laws, and the system of legal education in both countries. These parameters have been chosen because they are typically the major components of a legal system. It is hoped that those who are not lucky enough to travel literally, would nevertheless gain useful insights of different legal systems from this pa-per, wherever they are. Legal Education The Legal Education Act regulates the training of lawyers in Nigeria, while the Legal Practitioners Act regulates the practice of law in the country. The Council of Legal Education (“Council”), which was

established in 1962, is the body responsible for the education and registration of prospective lawyers in Nigeria. In order to fulfill this role effectively, the Council established the Nigerian Law School (“Law

School”) in 1963. The Law School operates on four campuses nationwide (Lagos, Enugu, Abuja, and Kano), and provides practical training for fresh law graduates. Generally, to be admitted to the Law School, candidates must hold a law degree from recognized Nigerian or foreign universities. In addition, candidates must be of exemplary character, and normally be Nigerians. They must also have passed the

following core courses, in their undergraduate law pro-grammes: The Law of Torts, Commercial Law; The Law of Contract; Constitutional Law; Criminal Law; Land Law; Law of Evidence; and Equity & Trusts. This requirement is made because the Law School does not teach the theoretical aspects of the above courses. It only focuses on the practical aspects of the professional work that candidates would be expected to do later when they qualify as both Solicitors and Advocates. The School usually conducts two examinations: Bar Part I and Bar Part II. The Bar Part I Exam is compulsory for all candidates who obtained their law degrees from outside Nigeria. Such candidates are required to take and pass the following bridging courses which are meant to introduce them to the principles of Nigerian Law: Nigerian Legal System; Nigerian Land Law; Nigerian Constitutional Law; and Nigerian Criminal Law. Of course, all law graduates from recognized Nigerian

universities are automatically exempted from the Bar Part I Exam. These candidates are only required to sit for and pass the following courses in the Bar Part II Exam, which is the main professional qualifying examination: Legal Drafting and Conveyancing; Commercial Law; Criminal Procedure Law; Civil Procedure Law; Law and Practice of Evidence; and General

Paper, which comprises Legal Practitioners’ Accounts, Income Tax Law; Office Management and Professional Ethics.

LEGAL SYSTEMS: NIGERIA AND MALAYSIA IN COMPARATIVE PERSPECTIVES.


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Only persons who have attended the course of practical training at the Law School and have successfully passed the requisite Bar Exam are eligible, under the Legal Practitioners Act, to be officially admitted to the Nigerian Bar, and

issued with a Certificate of Call to the Bar by the Council of Legal Education, permitting them to practice law in Nigeria. Unlike in Great Britain, persons so qualifying do so as both Solicitors and Advocates of the Supreme Court of Nigeria. The Council of Legal Education; the Body of Benchers; the Legal Practitioners Disciplinary Committee; the Nigeria Bar Association; the General Council of the Bar; the Legal Practitioners Privileges Committee; and the Legal Practitioners Remuneration Committee maintain legal standards and integrity.

In Malaysia, persons aspiring to become lawyers must, as in the case of Nigeria, first obtain an undergraduate degree in law from a recognized university. They must then either complete the Bar Vocational Course in England and be called to the English Bar, or pass a qualifying examination in Malaysia and obtain a Certificate in Legal Practice (CLP). The CLP resembles the Bar Part II Exam to some degree. Candidates are tested in four papers: Civil Procedure; Criminal Procedure; Professional Ethics; and General Paper. The components of the General Paper in this case are Contract Law, the Law of Torts and the like, which differ from those of the Bar Part II Exam. Candidates who obtained their law degrees from the University of Malaya or the National University of Singapore, or candidates in possession of relevant qualifications otherwise recognized by law, are generally exempted from these examinations.

Having fulfilled these requirements, candidates must next complete nine (9) months of practical training called “chambering” at a law firm in Malaysia. This is similar to what is called “Law Office Attachment” in Nigeria (or “pupilage” in the United Kingdom), which consists of two

intermittent periods, spanning several weeks that give candidates the opportunity to experience the law in practice. They learn office work and attend court sittings. Candidates undertake the Law Office Attachment while still studying at the Law School, and this is one of the conditions for qualifying to sit for the Bar Part II Exam. No remuneration is expected or paid.

In Malaysia, during their chambering period, candidates participate in the legal aid scheme or-ganized by the Malaysian Bar. Upon successful completion of these requirements, they are then admitted to the Malaysian Bar. In the case of

Nigeria, candidates are not required to participate in the legal aid scheme, or similar programmes before being admitted to the Bar. However, it is compulsory for all Nigerian graduates, including those from the Law School, to undergo one full year of national service under the National Youth Service Scheme, during which, they engage in various activities, including the rendering of legal aid.

Legal System The Nigerian legal system is a mixture of received English law, Nigerian judicial decisions, customary law (regulating personal and family relations mainly in Southern Nigeria), Syariah law (regulating Moslem personal life mainly in Northern Nigeria), legislative enactments, and the 1999 Constitution, which is the supreme law of the country. The 36 states in the country, and Abuja, which is the fed-eral capital territory (FCT), each has its own laws, but these laws are all subject to the 1999 Constitution. The federal and the state court systems do not function in parallel. To say that each state has its own laws does not exactly mean that each has its own legal system. The Malaysian legal system is similarly a mixture of



received English law, Malaysian judicial decisions, customary law (regulating non-Moslem personal and family relations), Syariah law (regulating Moslem personal life), legis-lative enactments, and the Federal Constitution.

With regard to the court system, there are four major categories of courts in Malaysia. The Federal Court is at the top of the judicial hierarchy. This is the equivalent of the Nigerian Supreme Court, which is the highest court in the country.

Moreover, like the Nigerian Supreme Court, the decisions of the Federal Court are binding on every other court in the country. In Nigeria, the Chief Justice heads the Supreme Court. This is also the case in Malaysia, where the Chief Justice heads the Federal Court. However, the composition of the Supreme Court is different from that of the Federal Court. Whereas the Federal Court is made up of the Chief Justice, the President of the Court of Appeal, the two Chief Judges of the two High Courts in Sabah and Sarawak, as well as seven other judges, the Nigerian Supreme Court may have as many as twenty-one “full time” Justices, apart from the Chief Justice. And although these Justices are usually appointed from the High Courts and the Court of Appeal, the High Court Judges and the Court of Appeal Justices do not simultaneously constitute, or function as Justices of the Supreme Court. Also, there are apparent variations in the method of judicial appointment in both jurisdictions. In Malaysia, all the members of the Federal Court are appointed by the Yang di-Pertuan Agong (who is a Monarch elected by the nine Malay Rulers of the designated states in Malaysia), which acts

on the advice of the Prime Minister, after consulting the Conference of Rulers. In Nigeria, on the other hand, the President of Nigeria appoints the Chief Justice and the other Justices of the Supreme C o u r t , b a s e d o n t h e

recommendation of the National Judicial Council, the equivalent of the Yang di-Pertuan Agong, and subject to approval by the Nigerian Senate. In both jurisdictions however, the decision-making in the Supreme Court and in the Federal Court is by a simple majority.

Again while a panel of three Justices may hear and determine matters before the Federal Court, in Nigeria, a panel of five Justices hears and determines matters coming before the Supreme Court. And in matters relating to the interpretation of the Nigerian Constitution, or an alleged violation or threat of violation of a fundamental right, a panel of seven Justices presides. Also, in addition, as in most Nigerian courts, all proceedings are conducted strictly in English. In Malaysia, a President heads the Court of Appeal, just as in Nigeria. The Court has fifteen other Judges who are appointed by the Yang di-Pertuan Agong, based on the recommendation of the Prime Minister, after consulting the Conference of Rulers. In Nigeria, the President of Nigeria appoints the Court of Appeal President, based on the recommendation of the National Judicial Council, and subject to approval by the Nigerian Senate. The other Court of Appeal Justices are appointed in a similar manner, but the approval of the Nigerian Senate is not required. However, as in Malaysia, a panel of three Justices presides over matters before the Court of Appeal in Nigeria. But while in Malaysia, High Court Judges may simultaneously sit in the Court of Appeal, this is not the case in Nigeria. Moreover, the Court of Appeal in Nigeria, unlike its Malaysian counterpart, does not hold circuit sessions. Instead, it operates in ten judicial divisions spread across the country, with as many as forty-nine Justices.

In Malaysia, there are two High Courts: the High Court in Malaya, and the High Court in Sabah and Sarawak. Both have a Chief Judge, and respectively forty-seven and ten Judges. The Judges are appointed by the Yang di-Pertuan Agong acting on the advice of Prime Minister, after consulting the

Conference of Rulers. In Nigeria, a State Governor appoints the Chief Judge and Judges of a State High Court, based on the recommen-dation of the National Judicial Council. The appointment of the Chief Judge requires, in addition, the approval of the


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State House of Assembly. A single Judge presides over proceedings in the High Courts. This is identical to the situation in Malaysia. The High Courts in both jurisdictions also have no jurisdiction over Syariah matters, which are handled by Syariah Court . Like its Malaysian counterpart, a Chief Judge heads the High Court in Nigeria. However, there are by far many more High Courts in Nigeria, as every of the thirty-six states in the country, as well as the (FCT) has a High Court. This is in addition to a Federal High Court, which handles matters concerning banking, tax and customs.

In Malaysia, there is a Special Court, which hears civil or criminal matters brought by or against the Yang di-Pertuan Agong or any of the nine Malay

Rulers. Special Courts similarly exist in Nigeria. They exercise limited court powers on special matters for which they are created. These courts include the National Assembly Election Tribunals for the Federation, and Governorship and Legislative Houses Election Tribunals for each State of the federation. In addition, there is the Court Martial, and the National Industrial Court. As can be seen, however, these courts are functionally different from the Special Court in Malaysia.

In Malaysia there is a distinction between the Superior Courts, , the Subordinate Courts and the Adjudicatory Bodies/Tribunals. In Nigeria, a similar distinction is made between Superior Courts

and Inferior Courts. The Superior Courts in Malaysia are the Federal Court, the Court of Appeal, the High Court and the Special Court. In Nigeria, the Superior Courts include the Supreme Court; the Court of Appeal; the Federal High Court; the High Court of the FCT; the Syariah Court of Appeal of the FCT; the Customary Court of Appeal of the FCT; the High Court of a State; the National Assembly Election Tribunal; and the Governor-ship and Legislative Houses Election Tribunal. Subordinate courts in Malaysia, the equivalent of inferior courts in Nigeria, consist of the Magistrate’s Court; the

Sessions Court; the Court for C h i l d r e n , ; a n d t h e Penghulu’s Court, in the case of Peninsular Malaysia. In Nigeria, the inferior courts s i m i l a r l y i n c l u d e t h e

Magistrate’s Court, and the Juvenile Welfare Court, which is equivalent to the Court for Children. The inferior courts also include the District Courts; the Area/Syariah Courts; and the Customary Courts. Except for the FCT, these courts are normally established under state laws. The High Courts and other specialized courts exercise supervisory and appellate jurisdiction over them. At the federal level, the Yang di-Pertuan Agong appoints Magistrates on the recommendation of the Chief Judge, whereas at the state level, the relevant state authority appoints the Magistrates, based on the recommendation of the Chief Judge of that state. In Nigeria, a State Governor similarly appoints the Magistrates, but on the advice of the State Judicial Service Commission. There are different grades of Magistrate’s Courts, which vary among the states. The Magistrate’s Courts in the 17 Southern states of Nigeria exercise summary jurisdictions in both civil and criminal matters. In the 19 Northern states, they exercise only criminal jurisdiction. The Court for Children in Malaysia was established under Section 2 of the Child Act 2001 to hear offences committed against children. It comprises a Magistrate, assisted by two advisors, if necessary. In Nigeria, this court is called the Juvenile Welfare Court. As in Malaysia, a Magistrate and two Assessors constitute the Juvenile and Welfare Court, and one of the Assessors would usually be a woman. In some states, the Chief Judge appoints the Assessors.

The Juvenile Welfare Court similarly hears charges that are brought against children and young people in a special, largely confidential setting. Some states have their Children and Young Persons Law, and children are

defined as persons who have not attained the age of 14 years. A young person is one who has attained the age of 14 years, but is under the age of 17 years.



The children and Young Persons Law (Northern Nigeria Laws, 1963) defines a young person as a person who has attained the age of 14 years, but has not attained the age of 18 years. In Malaysia, a “child” is, however, defined differently as a person under the age of 18 years, and in criminal proceedings, as one who has attained the age of 10 years. One can glean from this comparison that the legal systems of Nigeria and Malaysia differ in several ways, in some ins tance s, s i gni f i cant ly . However, there are considerable similarities, as well. Indeed, it could be asserted that local variations aside, both systems are largely the same, with a noticeable British influence. Thus, a Malaysian lawyer, like Mr. Hari, who suddenly finds himself in Nigeria, saddled with some legal work, would, no doubt, find the legal landscape relatively familiar. The same goes for a Nigerian lawyer visiting Malaysia.

Frank Akpoviri (An intern with JHJ and currently pursuing his postgraduate degree in law [LLM] with the National University of Malaysia [UKM])

Introduction In a nutshell Legal Knowledge Management (LKM) refers to - the collection, organization, dis-semination, and reuse of knowledge cont a in ed na t i v e l y wi th in documents and individuals’ minds. The term specifically includes the development of standard forms, tools, and templates to streamline the delivery of service. This definition is quoted from the LKM White Paper One entitled: “Legal Knowledge Management A Holistic Model” dated April 2003. In my experience talking to fellow Knowledge Managers and lawyers in Malaysia, the majority of law firms are generally unaware or have shown little interest in adopting LKM initiatives as part of their management milestone or overall management strategy. Perhaps this is because many within the Malaysian legal fraternity are oblivious or not yet completely convinced of the value in LKM initiatives. Possibly many are against adopting LKM initiatives due to the precon-ception that it is time consuming and “not billable”. To be fair, since salaries and bonuses in law firms and most other organisations are often based on achieving billing and collection targets, it would be difficult to convince employers to invest “valuable time’ in what they perceive as non-billable work. Ironically however, law firms are highly dependent on two factors for survival i.e.:

(a) the amalgamated legal knowledge of the firm; and (b) the ability of the firm to manage that knowledge and convert it into

dollar and cents. The time saved by the firm once the necessary LKM initiatives are up and running will allow employees to be more efficient and lawyers to have a shorter turn around time in producing their work thereby increasing their billable work. Preservation of knowledge is important since it ensures that crucial work products do not go to waste or vanish with employees that leave the firm but are stored for the benefit of continuing members of the firm and also serves as a resource to help new recruits to bring themselves up to speed more quickly with the firm’s work. In recent years, some Malaysian firms have set up their own Knowledge

Legal Knowledge Management (A Knowledge Manager’s Insight)


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Management Departments with the hope of following their foreign counterparts that have adopted LKM initiatives. Although this trend is encouragable, the mode and manner in which it is adopted locally may be questionable? The LKM White Paper of 2003 indicates that most firms (the study did not cover firms in Malaysia since LKM is still at its infancy in Malaysia) launch a full-blown LKM initiative without a thorough understanding of Knowledge Management theories and how LKM will or should benefit t h e f i r m . T h e s e f i r m s confine their Knowledge Manage-ment Department’s scope to conducting legal research and be-lieve that by installing certain software program and creating a designated server to store prece-dents will solve all the firm’s ills. Frequently, when this approach is taken, employees are left isolated from the Knowledge Department and not provided adequate training and understanding to learn to use Knowledge Manage-ment tools effectively and under-stand the concept of LKM. Such practices are doomed for imminent failure. LKM is a synergistic concept that must be adapted in all the various departments in the firm, which includes finance, human resources, administration and not just the legal units of the firm. LKM is not a marketing gimmick! It is a cultural change in the practice and management of legal services that must be embedded in and practiced by every employee of the firm. It has to start with the basics and in the absence of software-assisted programs.

Encapsulating the Firms Knowledge Knowledge sharing is the root element to an effective LKM initiative. In Messrs Jayadeep Hari & Jamil (JHJ) informa-tion pertaining to manage-ment strategy of the firm is shared with all its employees.

This includes billing and collection targets as well as detailed information on the actual revenue of the firm. The employees play a crucial role in the management of the firms’ clients and this is not reserved or limited to a Partner or a lawyer. We have taken such steps in JHJ to inculcate a common sense of ownership to the firm and to prevent the isolation of employees from the LKM initiatives. These steps help foster a sharing environment where lawyers are more willing to work together in teams and combine their knowledge for the benefit of the firm’s practice and its clients.

We do not profess to be experts in the implementation of LKM, nevertheless JHJ has taken some key initiatives to create and develop a knowledge sharing culture within the firm and these include: (a) Ensuring relevant and pertinent infor-

mation regarding clients are copied to all the employees of the firm to ensure that everyone is kept in the loop and is able to attend to the client in the absence of the person in charge [this is of course practiced with strict and due regard to clients confidentiality];

(b) Creating a central work product depository (i.e. a main server) which is a central location in which legal work product is accumulated, organized, and maintained;

(c) Every employee is involved and aware of the actual

billings and collection of the firms [No one is left out and this creates a sense of ownership to the firm];

(d) Support staff’s are encouraged to mingle with the client’s

support staff to create a better rapport between the firm and its client at all levels [This enables the employee’s of the firm to understand and appreciate the characteristic of every client and fulfill their needs];

(e) Providing training for all its employees on the value of

LKM and the benefits it can reap if properly applied; [This creates an awareness and encourages employees to embrace the cultural change LKM promotes];

(f) Employees are required to be well informed about the

firm’s clients. Whether they are corporations, small businesses or individuals, — understanding the client’s interests, positions and expectations is important.



Maintaining an accurate client knowledge base por-trays the importance the firm gives to the client and enhances a cordial relationship; and

(g) Circulating bi-monthly legal updates and bi-annual

newsletters to clients for free with a goal of sharing our firm’s knowledge on the latest development of the law and at the same time educating clients.

Knowledge sharing is an idea that must be embraced through the appreciation and understanding of the benefits it can garner as opposed to a unilateral decision by the management to force it onto its employees. As such, LKM initiatives should never start of as a full-blown exercise but a carefully planned initiative that blends with the goals and motives of the firm. The LKM needs of every firm is unique in its own way. However there are certain standard elements that should feature in a LKM initiative. The legal profession is syn-onymous to the business of selling knowledge. To facilitate a smooth storage of the firms knowledge, the firm is required to come up with a LKM plan which incorporates best practices that include standard operating procedures of the various departments (this comprises of steps that begin with the opening of a new file to documents to be prepared and end with the closure of the file) and an employee hand-book which regulates the conduct of em-ployees from a human resource and administration standpoint of the firm. These processes are forms of tools that must be in place to ensure that the data and resources the firm produces is not put to waste but captured and catalogued and stored for future use. Having a framework on a series of steps it takes to complete a project or accomplish a goal is necessary to ensure good organization and work quality. For instance in JHJ, we developed a Conveyancing Checklist for the various scenarios concerning the sale and purchase of a property and loan documentation which includes those properties with or without title, title with restriction or a charge attached etc. Under this checklist all the steps from the receipt of instructions to the final step of perfecting the transfer of a property is covered. A general timeline is also provided in an excel spreadsheet as a form

of check to ensure that there is no delay and all the KIV’s concerning a matter is in place.

Technology and LKM The use of technology in a LKM initiative is purely to enhance and computerize the existing processes, which can be other-wise done manually. It should not be seen as a replacement to the human element in LKM. Only a firm with an

embedded knowledge sharing culture can find the embrace technology on a broad spectrum of their business and legal needs work to their benefit. Technological advances here would include storage of precedents, time and billing soft-ware, file management systems, contact information, docu-ment collections, the firm’s calendar system etc. After the LKM plan is formulated and the firm has decided what data needs to be captured, the firm must decide what hardware and software are needed to implement the plan. The array of available legal technology packages is overwhelming. Some firms use a different application to handle each aspect of their KM needs. Others rely on one centralized product such as a case management or matter management package, and utilize add-on features as additional needs are realized. Employees are in a unique position to recommend or choose software

applications since it is they that would be involved in the day-to-day operations of the firm. Process management is accomplished with applications that keep track of tasks, dates and resource allocations. Office suites and case management programs usually come with a calendaring program or task manager adequate for small firms or individual use. There also are applications specifically used to manage projects

from start to finish, including cost accounting, generating charts and reports on various aspects of the project, and the creation of a generic timeline so future projects can be planned based on the time required by previous projects. Process management, whether done with a hand-drawn flow chart or a sophisticated project management software program, requires a complete understanding of the logistics of the process, the resources needed to complete the project according to established deadlines, and the ability to plan for contingencies that might arise during the course of the project.


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JHJ &Siam Legal Signing Of The Memorandum Of Understanding Solidifying Our Alliance

LKM initiatives are for firms with a progressive attitude and proactive management style. These firms are success-ful because they recognize that to stay competitive, they must adopt new systems and procedures that enhance the quantity of work produced without sacrificing the quality. LKM: From Experience

Experience has thought us in JHJ that there are some factors that are apparent when it comes to making LKM workable in our firm. These include:

• Visible involvement of the Management – employees should be able to appreciate the serious-ness the management has attached to LKM. It must be unequivocally made known that LKM is an integral part of the firm and that the failure to ob-serve or adhere to LKM initiatives will only be futile;

• Aligning LKM initiatives with the standard operations of the firm encourage uniformity in poli-cies with all departments.

• Including one KM-specific objective in annual, formal "Goals & Objectives" for each employee. (This includes "LKM" assessment in performance reviews and in compensation decisions)

• Incorporating LKM into the annual performance appraisal review and setting of goals/objectives.

• Providing professional Training & Development. -

so that we can synergistically embed LKM values into new-hire orientation programs, and/or producing regular seminars for existing employees to develop and contribute to LKM initiatives;

• Not to be overly dependent on technology and to

keep things as simple as possible • Putting an individual who has real passion for LKM

to be in charge of LKM initiatives, preferably a senior associate and one who has people skills, management experience, and credibility in the firm.

• Giving every department in the firm (be it legal or

non-legal) a role in designing the LKM strategy suited for their department.

• Regularly auditing the success of LKM initiatives

and reporting successes and failures. The process of improvement is always on going.

Conversely, we should stay clear from: • Selfish attitude – internal knowledge sharing must not

be avoided. No single person can claim ownership over a work product. It belongs to the firm and as such it as of right available to every employee.

• Assuming KM is about technology and let the IT

department manage LKM initiatives; • Expecting that people will "make time" for LKM. Either

give them extra time, or specifically re-balance current responsibilities; and

• Being contented with the initial LKM Plan that has been

put into place – initial initiatives will always give rise to teething problems and it is only with trial and error can LKM initiatives be improved if not perfected

Conclusion In the three (3) years since we started our LKM initiative, we have found through feedback within and outside the firm that LKM correlates with the basic fundamentals of running JHJ. LKM is an exercise that can suit and benefit any law firm not just JHJ and it is not dependent on the size of the firm and the depth of its pockets. JHJ is a good example of a medium sized firm that embraced LKM to its benefit and to their clients benefit. Legal firms in Malaysia whether large or small should be encouraged to incorporate LKM as a culture within and as part of their day-to-day operations. Technology is only there to assist but not achieve a firm’s goals. All that is required as a start is the development of a knowledge sharing culture and manually creating processes and policies that encourages such a culture within the firm.

Aravindhran Balan Knowledge Manager & Editor

JHJ is pleased to announce that as of 1 January 2009 Ganesheraj Selvarajah has been admitted as Partner. Ganesheraj was born in Ipoh and pursued his undergraduate degree in law at the University of Staffordshire, United Kingdom. He joined JHJ fresh upon being admitted to the Bar in 2004. Over the five (5) years he has been with JHJ, he has garnered considerable experience in corporate, financial and commercial matters that includes mergers and acquisitions, corporate advisory work, regulatory matters, listings, corporate exercises, reorganizations and restructurings, insurance schemes of arrangement, joint-ventures, privatizations, corporate financing including project financing and corporate administration. The ability to develop successful professional relationships with client is one of the core competencies required of a partner in JHJ. Ganesheraj has over the years developed and continues to nurture high quality of work and provide unconditional dedication in servicing the needs of JHJ’s clients with whom he is involved on a professional level. We are proud to have him on board the management of JHJ and we look forward to having him take a lead in bringing JHJ to new and greater horizons.

This newsletter is produced by our Knowledge Department. Please feel free to contact the Department at [email protected] for any further information pertaining to this newsletter.

We Care ***** Since 1997

JHJ’S NEWLY ADMITTED PARTNER

PRINTER: Intan Spektra Sdn Bhd, No. 12, Jalan Vivekananda, Brickfields, 50470 Kuala Lumpur

PUBLISHER: Messrs Jayadeep Hari & Jamil (Advocates & Solicitors) Suite 2.03, 2nd Floor, Block A, No.45, Medan Setia Satu, Plaza Damansara. Bukit Damansara, 50490 KUALA LUMPUR Website: www.jhj.com.my Tel: 603-20-961478 Fax: 603- 20961480

Documents

Legal Cauldron issue 1 of 2009